Updated: Apr 8, 2019
[NOTE: This post addresses children born to “opposite” sex partners. Children born to same sex partners will be addressed another time]
Although it may come as a shock, that fact is that unmarried people sometimes have babies. Under Minnesota law, an unmarried woman who gives birth has sole legal and physical custody of the child unless and until a custody order is entered by the Court. This means that the biological father has no right to custody or parenting time and no responsibility to care for the child. Because of this, both parents may have an interest in having such an order entered.
Before a custody order can be entered, however, the identity of the child’s “legal” father must be determined. If a couple is married, the law presumes that the husband is the father of the child. In contrast, if the parties are unmarried, something needs to occur to establish legal fatherhood.
The easiest way to establish paternity is for both parents to sign a Recognition of Parentage (“ROP”). This is often done at the hospital or birth center shortly after the child is born. Once signed and filed with the Office of Vital Records, the ROP establishes the legal relationship between the father and the child. An ROP also:
· Allows the father to be named on birth records;
· Allows the child to be covered by the father’s medical and dental insurance;
· Gives the father the right to be notified of any adoption proceedings;
· Gives the father the right to ask for custody and parenting time;
· Gives the mother the right to ask for child support.
It is important to remember that the ROP does NOT, in and of itself, establish custody or parenting time for the father, or create an obligation for him to pay child support. A court order is still needed to do these things, but the ROP eliminates the need to first determine legal paternity.
The parties can sign an ROP even if the mother is married to someone else, but in such cases the mother’s husband needs to sign a Non-Parentage Statement (“NPS”) within one year of the child’s birth to voluntarily establish that someone else is the biological father. If the husband does not sign the NPS, the parents will need to get a court order to establish that someone else is the father. Both an ROP and an NPS may be revoked within 60 days of signing; after 60 days, they cannot be undone without a court order.
If there is no signed ROP, either party can ask the court for an order stating that the man is the legal father of the child. Often, this is done in conjunction with a request for custody and parenting time, or for child support. In such cases, both parties may agree about the identity of the father, or they may demand proof in the form of genetic testing. Such testing can be voluntary, or it can be ordered by the court if proper allegations are made indicating that the man is likely the father.
Genetic testing can be done any time after the child’s birth and can show, with a very high degree of certainty, that the man is or is not the biological father. If the testing demonstrates that the man is the biological father, the court will enter an order making him the legal father as well. Once this happens, custody, parenting time, and child support can also be determined and ordered by the court.
For more information regarding the establishment of paternity, custody, parenting time, or child support, contact Kruse Family Law PLLC by phone at 612-231-9865 or via email at firstname.lastname@example.org.